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306 Cards in this Set
- Front
- Back
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Law
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A body of rules for conduct that allows civilization to exist and people to live orderly lives
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What are the three fucntions of law
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1. dispute resloutions, 2. protection of property, 3. preservation of state
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What are the classifications of law
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substantive law, public law, private law, crimial law, and civil law, and procedural law
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What is substantive law
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body of law that creates , defines, and regulates what your rights and duties are
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What is Public law
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type of substntive law that deals with the government and its relationship with individuals concerning rights and duties
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What is criminal law
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(a part of public law) which are violations againest public order
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What are the two types of criminal law
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felonies, and misdamenors
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What is private law
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a part of substantive law that deals with the relationship of individuals and organizations
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What type of law is business law
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private law
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What is civil law
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( part of private law) wrongs or violations againest on individuals
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Who can sue in a civil case
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the wronged party
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What are the three standards of proof
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perpondance, clear and convincing, and beyond a resonable doubt
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What is proof of perponderance
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the easiest standard of proof in court and used in most civil cases. it is a weighing of the evidence
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what is proof of clear and convincing
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used in civil cases involving the goverment. which ever side produces the most clearest and convincing eveidence wins
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what is beyond a reasonable doubt
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highest standard of proof and used in criminal cases. it allows you to come up with different verdicts than a civil case
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What is procedural law
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gives info that you need to get your remedy in court
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what are the two sources of law
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constitutional law and judicial law
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what is constitutional law
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sets forth the general organizational structure , the powers, and the limitations of those powers
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what is the supreme law of the land
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us constitution
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what does the us supreme court do
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interperet the constitution and what it means
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What is judicial law
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deals with the court system
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What kind of court system do we have
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common law system
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What do me mean by common law
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case law or judge made law
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what besides common law do we also have
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an adversary systme
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what is an adversary system
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it allows us to challenge the actions of others through proof and evidence in court ( basically we initiate the law suit)
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What do we have with our common law system
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precendent
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What is precedent
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rule of law
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Ecery case has a rule of law and with that comes what
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stare decisis
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What is stare decisis
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it means to stand by decided cases
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what does stare decisis give our country
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gives our legal stsyem stabilty
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The court of equity is also known as what
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the court of chancery
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when do you go to the court of equity
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when there is no adequete remedy in court of law
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there are no what in the court of equity
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jurys
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what do they use in the court of equity
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maxiums ( legal principles)
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What is the remedy in a court of law
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money
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What are the different remedies in the court of equity
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injunction, specific performance, reformation, and recission,
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what is an injunction
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makes someone cease doing harmful conduct
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what is specific performance
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order from the court that will make someone have to perform the specifics of their contract
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what must occur for a specific performance to occur
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breech of contract
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what is reformation
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when you go to court and ask judge to rewrite tthe terms of the contract
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what is recission
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when the court will end the contract
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what does the judge in the court of equity issue
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decree's
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what do we use to support our cases
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restatements of law
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what are restatements of law
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it igives you a law and a case to back it up
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what is legislative law
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body of law that comes from our legistaltive ( also knonw as statitory law)
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what is commercial law
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body of law that deals with trade and commerce
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where do we get the basis of this law
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for the uniform commercial code
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what do we get from the UCC
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the rules for commerce
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what is admisnstrative law
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source of law that comes from your executive branch through your adminstrative agency
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what are your sources of law
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legislative law, commercial law, and adminstrative law
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what can and cannont stand alone
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statues and regulations cannont stand alone, court decisions can stand alone
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why can court decisions stand alone
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because they have been interpreted
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what are appleate cases
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cases that have already gone to trial, judge has made a decicion and there is an appeal
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a law of one state applies to what
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only that state
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we have reporters of what nature
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regional and federal
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how many reporters does the us sumpreme court have
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3
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what are the parties in a trial level case
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plantiff and defendent
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what are the parties in a appelate level case
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appelate and applle or a petitioner and respondent
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what are the three court opinions
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majority opinion. concurring opinion, and dissenting opinion
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what is a majority opinion
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it is the only one that can be qouted by precedent. it is the opinion wirrten by the judge that voted with the majority and it expresses views of the majority. it gives the rule of law
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what is the concurring opinion
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seperate opinion written by the judge that voted witg tge majority that wants to clarify something. most of the time judges do this because they agree with the majority but not how they came about it
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what is a dissenting opinion
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seperate opinion written by the judge who did not vote with the majority
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what are dissents good for
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to turn a law over
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what are the precedents of law
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the majority opinions
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what is the one social responsibilty of a business
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to make a profit but to do it legally
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what plays into dealing with contracts
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your good faith and fair dealings pledge
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what does a good faith and fair dealings mean
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that they aren't trying to be sneaky etc..
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what does unconscionablity deals with
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unfairness . it is where you have an unfair situation where one party has all or most of the bargaining power
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A uncontiablitly situation is also known as what
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a adhesive situation
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what is bait and switch
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an illegal advertising where thye get you in the store with a inexpensive product and when you go to the store they try to get you to buy an expensive product instead
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what is agency law
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deals with when someone acts on behalf of another person
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what do you need to create an agency relationship
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an agreement between parties
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what are the three types of agent authority
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expressed authority, implied authority, and apparent authority
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what is expressed authority
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explicit instructions given to the agent by the principal
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what is blind obedience
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when the agent does what the principal tells him even though he knows it is illegal
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what is implied authority
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authority that helps the agent carry out his expressed authority
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what is apparent authority
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comes into play when the principal gives an impression the agent can do something he really isn't supposed to do
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principal is liable under what circumstances
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the agent acts witin the cope of his authorty
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when is the agent liable
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when he acts under no authority
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Why is vicarious liablity part of the agency relationship
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because the principal is vicarious liable as long as the agent is acting within the scope of their job
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what is a fidiciary duty and who owes it
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the duty of highest loyalty and trust. the agent owes it to the principal
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what kind of duty does the principal owe the agent
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a duty of good faith and fair dealings
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what is an employee at will
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a employee that does not sign an a employment contract
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what can happen to an employee at will
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they can be fired at anytime with or without cause
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what is a whistle blower
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a person that informs authority of illegal conduct by his or her employer
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can a whistleblower be fired
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no, the company cannot take any kind of retalitation againest you
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what is insider trading
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when you get access to information that is not disclosed to the public and you act on it before the info is disclosed
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what is the precedent for the cas Chirella v US
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if you are in a position of trust and you get acess to privilaged information, that information must be disclosed to the public before you can act on it
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what is the duty to act, good samartin law
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it is a law that means you have to help your fellow man in need
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what precedent does the s Soldano v O'daniels case give us
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you cannot keep a good smartian from trying to help
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how many seperate and distinct court systems do we have
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53 - 50 states, dc, puerto rico, and federal court system
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what are federal distirct courts
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your trial courts on the federal level
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federal trial courts have origional jurisdiction, what does that mean
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they have the ability or right to try the case
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how many district courts are there on the federal level
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97
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how many federal district court judges do we have
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575
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what are federal circiut courts
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you federal court of appealls
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federal circiut courts have appealte jurisdiction, what does that mean
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that they have the right to hear appealls
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how many judicial circuits are there
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13
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what is appealate jurisdiction
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means you do not retry the case it reviews the record of the trial court to see make sure there was no procedural or prejudical error
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What are the four appealate court decisions
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affirm, modify, reverse, and remand
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what does it mean to affirm
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agree and uphold a courts decision
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what does it mean to modify
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agree but add some things ( does not change ruling)
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what does it mean to reverse
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disagree and give new desicion
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what does it mean to remand
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there was so much error that it needs to be sent back to tbe retried
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what is the 3rd court on the federal level
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supreme court
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what is the highest court in the nation
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supreme court
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how may justices are there
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9
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what ways do cases go to the supreme court
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appeal by right and writ of certiorari
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what is writ of certiorari
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order that the lower courts turn over all the records to the supreme court
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how are the cases chosen by the supreme court
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the are discretionary. the justices only hear the cases they wanna hear.they only hear about 200 cases a year
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What case lets us know that the US Sumpreme court is an appleate court
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marbury v madison
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what is the case precednt for marbury v madison
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That the supreme court cannont give a remedy because they are an appelate court not a trial court
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What are limited jurisdiction / inferior trial courts
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this is where you have low dollar civil cases and less serious criminal cases ie small claims court
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what is the problem with small claims court
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you have to enforce your own judgement
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What is general jurisdiction court
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trial court where you hear the more serious criminal cases and high dollar criminal cases
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what are the special courts on the federal level
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tax courts . bankruptcy courts
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what are the special courts on the state level
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probate court, family court
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on the state level we have two seperate appealte courts, what are they
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intermediate appelate court, and state sumpreme court
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what is intermediate appelate court
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hear appeals from your lowere trial courts - has two intermediate appelate courts, civil and criminal
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what is the state supreme court
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highest appealte court in the state
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what is jurisdiction
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the courts powere or courts authority to hears a case. if a court does not have jurisdiction the court cannot hear the case
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what is venue
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proper geographical location of the court
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what is subject matter jurisdiction
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the courts powere of courts authority to hear a certain type of case
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what is federal jurisdiction
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the federal courts have the right to hear the case
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what is exclusive federal jurisdiction
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the fedreal courts are the only ones that hear the issue ( bankrupty, patent, antitrust)
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what is concurrent federal jurisdiction
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the federal courts share this jurisdiction with the state courts meaning you have choice of what court you want
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What is federal queston jurisidction
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arisies anytime the basis of your lawsuit deals with the us constitution , federal statue, or federal treaty
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What is diversity jurisdiction
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it allows you to a purely state issue to go to federal court
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what are the four reasons you choose federal court
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your case is heard sooner, higher level of expertise, less bias, you can get more money
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what are the two requirements for diversity jurisdiction
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diversity of citizinship and a alledge of being owed 75000 dollars
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what is diversity of citizinship
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the parties are from different places
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What is forum shopping
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shopping around for the best court
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What case dealt away with forum shopping
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Erie Railroad Co v Tompkins
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What is the case precedent of Erie Railroad v Tompkins
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If a court hears a case dealing with purely state issues the federal court must use the applicaple state laws in making its decisions. It cannot abirtarily apply any law it chooses
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What is exclusive state jurisdiction
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cases that have to be brought to state court
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How do you know if it is exclusive state jurisdiction
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it is is not excluusive federal or concurrent federal
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What are the types of concurrent federal jurisdiction
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federeal questions jurisdiction and diversity jurisdiction
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What is conflict of law
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when you have various state laws that come into play
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What do you do in conlfict of law
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go to court to see where you are going to court
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What is impersona jurisdiction
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sometimes called personal jurisdiction which is jurisdiction over the person
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how does a state have impersona jurisdiction over you
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you have to have some kind of ties or contact with the state
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what is the long arm statue
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allows states to extend there jurisdiction beyond their borders
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what is in ram jurisdiction
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jurisidiction over the thing
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What are the first papers filed in court in a civil dispute
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pleadings
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What is the main purpose of your pleadings
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to draw into focus what your issues are
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What is issue of fact
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usually there for a jury to decide on
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what is an issue of law
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there for a judge to decide on ( judge can decide on boht law and fact though)
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What is the first pleading that is filed
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the complaint
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What is a complaint
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a short statement that details why the plantiff is bringing the suit and must state what relief they are seeking
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What accompys the complaint
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the summon
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what is the summon
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it is to give the defendent a notci that he is being sued an lets him know how long he has to respond to the allegations
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what is an answer
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it is what the defendent must file which is a response to the allegations in the summon
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what can the defendent say in his answer
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he can admit, deny, or say he does not have suffcient information to answer
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what happens if the defendent does not file an answer
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the judge will issue a deflaut judgement and the plantiff will win without ever going to court
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what happens if the defendent answers yes to the allegations
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the judge will issue a summaray judgement which the plantiff wins withought ever going to court
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What is the case precedent from parker v twentith century fox
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that you must minimize your losses and if there is no issues in dispute a summary judgement can be issued
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What is a counterclaim
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when you have your defendent bring a lawsuit againest a plantiff
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what is cross claim
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when you have parties in the same side who have varying degrees of liablity and sue each other
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What is service of the process
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to recieve notcie of the lawsuit
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what is service by publication
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to reciev notice by the newspaper
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how can you get service by publication
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if you get the judges permission and have exhausted all other ways to service them
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what is judgement on the pleadings
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papers submitted to the judge on how strong the case is
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while getting ready for court what do you have
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discovery
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what is discovery
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finding of information run by the attorny but you should never just let an attorny hadle it
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what is a diposition
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something that happens during discovery and is sworn testimony that anyone can fill out
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what are things that you get during discovery
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dipostiton, written inerrogatory, production of documents and physical objects to the other party, eximanations, find your witnesses, and requests for admissions
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what is the use of a dipostition
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it perserves evidence
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what is a written interragatory
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written request for answers and can only by submitted to parties ie plantiff or defendent
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what is request for admission
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it is admissions of facts submitted to the opposing party
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what is not discoverable
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attorney work product
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what does it mean to not be discoverable
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it does not have to be turned over to the opposing party
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what is a pretrial conference
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the attornies and judge meet to see what the issues are and set up time for hearing and trials
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what are settlement conferences
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where the parties decide if they are going to settle the case or not
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who can sue
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only a person who was injured or wrong and only when there is an actual case or controversy
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what is case of controversy
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you have suffered the injury and continue to suffer the injury
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what is moot
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you no longer suffer the injury
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what is moot but capable of repitition
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you can sue because the oppurtunity to still suffer is there
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What is not ripe
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you have not suffered the inhjury
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what is advisory opinions
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an argument that has nothing to do with leagel matters and the court will not make decisons on these matters
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what is the first things that happens in trial
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jury selection
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what is voir dire
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questioning period between the potential jurors and attornies to see if they are capable of standing trial
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what are challenges
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also known as strikes , it is what the attorney exercises to get rid of jurors
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what type of challenges are there
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challenges of cause and prempotory challenges
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what are challaenges of cause
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unlimited number of challenegs that say a potential juror is uncapable of standing trial
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what are prempotory challeneges
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limited number of challanges that they can strike on jurors for any reason with or without cause
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what two cases deal with prempotory challeneges
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batson v kentuckey, and edmondson v leeville concrete co
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what is the precedent fot batson v kentuckey (criminal case)
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When making prempotory challenges the attorney had to be neutral in their strikes
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what is the case precedent for edmonson v leeville ( civil case)
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Says prempotory challenges must be grouped neutral
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what is an opening statement
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breif overveiw concerning the facts they expect to prove in court
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What is direct examination
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the party examines their own witness
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what is cross eximination
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the opposing party exmines the opposing party's witness
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what info can be brought up in cross examination
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only the info brought up in direct exminationt
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what is redirect exmination
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when the part examines their witness again after cross eximination
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why do we do redirect exminations
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to rehaibilitate the witness
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what is recross eximination
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when the opposing party has a chance to examine the witness after redirect
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after the prosecution rests his case what happens
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the defendent will ask for a direct verdict
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what is a direct verdict
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it is when the defense doesn't think that the prosecution met the standard of proof
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what happens if the judge does not give a direct verdict
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then the defense will start their direct eximinations
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after the exmination cycle is finsihed what happens
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either party will ask for a direct verdict again
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If a direct verdict is again denied then what happens
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both parties will give closings
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what are closing arguements
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the summation of the trial and last thing jury hears
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what happens after closing arguments
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the judge gives the jury instructions and tells them the law and how to apply the law
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what happens after jury instructions
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the jury deliberates, if they cannot come up with a uniamous decision then the jury is hung, if they come up with a decicison then after the verdict is read the judge thanks them and then sets up a timeline for a sentincing or judgement
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what is a motions for a new trial and how do you get one
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it is when you try to get a new trial and you cannot get one unless you get new eivdence that would substantially change the trial
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what is judgement not withstanding a verdict
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you ask the judge to take away the verdict from the jury usually because they come back with the wrong verdict
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How do you get an appeal
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the onlt way to get an appeal is if there was some kind of predjudical and procedural error
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what does a brief do
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it stands in for the witnesses in appealate court
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what is a brief
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includes statement of the case, your arguments, and your reasoning
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what are oral arguments
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sometimes when the brief is not enough attornies go before the appealte court to orally argue the brief in front of the judge
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what is an order
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it is the relief the parties think they are entitled
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who submits the order
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both parties
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after orders are submitted what happens
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the judge issues his final judgement
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what is garnishment
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court order to take money out of a person's bank or check
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what is the ful faith and credit clause
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each state must respect the final judgement in another state
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what are alternative dispute resolutions
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ways to have case settled without going to court
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what are the advantages of alternative dispute resolutions
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privacy, speed, parties can continue relationship, more flexibilty and control
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what are the disadvantages of alternative dispute resolution
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might not be voluntary, not binding, sometimes can be expensive, no right to due process
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what are the 8 different types of alternative dispute resolution
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arbitration, concelliation, mediation, med-ar, mini trial, summary jury trial, negotiation, and private trial
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what is arbitration
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when a neutral third party issues a binfing deicsion on a case after reviewing all the evidence
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how can you get an appeal in arbitration
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since arbitration is usually not appeallby then the only way to get one is if you can prove bias on the arbitrators behalf
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what is an award
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what the arbitrators decision is called
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what is another names for arbitrator
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arbitor
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what happens when parties agree to go to arbitration
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that is their exlusive remedy and they cannot change their mind
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what is the case precedent to the Circuit City Stores v Saint Clair Adams case
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Transportation workers are the only one excluded from the federal arbitration act
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what is concelliation
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a non binding informal process where parties meet with a concilliator to get the flow of communication going
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what is the concilliators job
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to open the flow of communication
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what is mediation
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a nonbinding process hwere the parties appear before a neutral third party the mediator
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what is the mediator jobs
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to open the line of comuunication and suggest possible solutions
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what is the difference between a mediator and a concilliator
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the mediator can suggest possible sulotions
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what is med-ar
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a combiation of mediation and arbitration
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what is the mini trial
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formalized settlemtn conferencewhere the parties appear before a nuetral advisor
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what is the neutral advisors job
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to maintian order and if the parties can't come up with a agreement then he can make an advisory opinion
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after the advisory opinion ids made what can happen
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the parties can talk it over some more and if they still can't make an agreement then they would have to go to court
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what is summary jury trial
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parties use this to detemine if they have to go to court and to see the stregth of there case, it is a mock trial
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What is negotiation
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only involves two parties and the two parties get together and try to solve their issue and get a solution
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what is a private trial
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parties appear before a retired judge ( alson known as rent a judge)
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what is attorney client privalage
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protects communication between the attorney and the potential client ( almost anything you say is confedintial)
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what does the attorney client privlage protect and not protect
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protects all past actions but not future actions
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attorny cannot represent parties who intrests are what
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adverse
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what does it mean that parties intrests are adverse
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the intrests conflict
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what is a class action
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where one person or small group of people bring an action on a large group of people
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in order to bring a class action what must happen
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the class must be certified
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what does it mean to be certified
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the judge agrees the class should serve as one
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if the class is not certified what happens
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they must sue seperatly
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what is the federal supremacy clause
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if you have a federal law and state law conflictting the federal law pre-empts the state law
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how can the federal sumpremacy law come into play
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if you have aonclfict between federal and state laws
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What is the silkwood v kerr mcgee corp case precedent
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that if there is no conflict in laws there is no preemptive
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what is judicial review
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allows you to challenge the actions of government
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What other case precedent to we get from marbury v Madison besides knowing that the supreme court is an appealte court
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you get the right to judical review
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in order for you to exercise judical review what must you have
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state action
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what is state action
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some form or branch of government was involved
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what is the case precedent of brentwood academy v tennesse secondary althitic association
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because well over the majority is goverment thay can be sued as sate action
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what is commerce power
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power that you legislative branch has
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what is commerce clause
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found in constitution article 1 section 8 clause 4 and is where congress gets bulk of its power
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what powers did congress have in the begining
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to regulate intrestae commmerce and regulate commerce between nations
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congress can do alot more today because of what four cases
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gibbons v odgen, mccollgh v maryland, wickard v fillburn, and russell v us
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what is the case precedent of mccollough v maryland
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congress can pass law because of the necessary and proper clause. they can pass laws if it is necessary and proper to carry out their duty
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what is the case precedent of the gibbons v ogden case
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congress can regulate intrastate conmmerce if it affects interstate commerce
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what is the case precedent of the wickard v filburn case
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if you intrastate commerce has a direct or indirect affect on interstate commerce congress can regulate it
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what is the case precedent of russell v us
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congress's power can reach to local criminal activity
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states have the right to pass laws where
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that have no federal action
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what is police powers
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there to protect the health and safety and welfare of its citizins
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with police powers states can do what
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pass any laws they want that do not conflict with federal laws and interstate commerce
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What is the case precedent of chemical waste managment v hunt
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the state has the right to protect their citizins but they cannot conflict with interstate commerce or federal law
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what is a contract clause
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article 1 section 10 which states congress cannot pass a law that will interfere with your right to a contract
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what can congress regulate concerning contracts
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they can regulate subject matter but they cannot regulate the contract
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what does the first ammednment do
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gives us our basic liablities and rights
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what is given in the first ammendment
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freedom of religion, freedom of speech, right of people to peacably asseblyand due process
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what two clauses are there concerning freedom of religion
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establishment clause and free exercise clause
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what is the establishment clause
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congress will make no law about establishing a national church or religion
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what is the free exercise clause
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can't pass a law on how we practice or if we practice a religion
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when is the only time they can pass laws concerning religion
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if it is endangering someone
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what two types of speech do we get in freedom of speech
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corporate political speech and commercial speech
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what is corporate political speech
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corporations can participate in political processes i endorsing a canidate or issue
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What is the case precedent from the abrams case
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allows them to particpate in corporate political speech
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what does the ballit case give us
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corporations can make political contributions but it has to come from a seperate fund
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what is commerical speech
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advertising
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how is advertising protected by commercial speech
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as long as the advertising is truthful and not misleading it is protected
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what is deformation
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communicating a false statement
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what is an absolute defense to deformation
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truth
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what is slander
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oral defromation
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what is libel
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written deformation
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if your a public offical to sue for deformation what must you show
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malice
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what is the case precedent for ney york times v sulivan
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for a public offical to sue there must be malice
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case precedent from gertz v robert welch
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order for public offical or public figure to sue for deformation they must show malice
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what is the right of people to peacably assebly
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right to gather and do things
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what do most places have concering the right to peacful assembly
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time place and manner resrictions ( there for safty reasons)
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what admeendments are worded differently but are the same thing
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14th and 5th
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what is the 14th and 5th ammendment
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due process
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what does the 5th ammendment apply too
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federal goverment
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what does the 14th ammendment apply to
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state goverment
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what is the types of due process
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substantive due process, and procedural due process
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what is substantive due process
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created to deal with labor law but now deals with rights and liberties of fundamental constitutional rights
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what is procedural due process
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freedom from arbitray goverment action
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what is the basic understanding of procedural due process
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before thet can take away your rights you must be given some type of hearing
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what types of intrests are coverd in procedural due process
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liberty intrest and property intrest
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what is liberty intrest
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fundamental rights you have
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what is porperty intrest
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tangible and intangible property rights
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before you can have your liberty or property intrests taken away what must happen
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you must have some type of hearing
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what is the case precedent for fuentes v shevin
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before your property can be taken away you must be given a hearing
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what is iminent domain
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a part of due process , the takinng of private property for public use
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what does iminent domain do
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allow the govermnet to take your property for public use
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what are the two requirments for iminent domain
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taking must be for public purpose, and taking must be given just compensation ( although goverment does not have to pay everyone the same)
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what is equal protection
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no state shall deny equal protection. it deals with imporper classification
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what is meant by imporoper classification and is coverd by equal protection
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can't classify people in a way that they would be treated unfairly ( you can classify and group people though)
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what is the case precedent for brown v board of education
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you can't classify and group people and treat them unfairly
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